Petrone v. Werner Enterprises, Inc. et al

Filing 120

MEMORANDUM AND ORDER - This matter is before the Court on plaintiffs' motionfor miscellaneous relief (Filing No. 113 ). The Court will adopt the deadlines and language communicated as set forth in this Memorandum and Order. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
PHILLIP PETRONE, STEWART
FISHER, JASBIR SINGH, and
BRIAN PANKZ,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC.,
)
d/b/a WERNER TRUCKING, and
)
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)

8:11CV401

MEMORANDUM AND ORDER

This matter is before the Court on plaintiffs’ motion
for miscellaneous relief (Filing No. 113).

The parties have a

number of disagreements regarding class-notification and seek an
order resolving the disputes.
I. Website Address
Plaintiffs’ proposed notice contains a reference to a
website where potential plaintiff’s can attain additional
information.

The URL for that website is

“http://www.wernerlawsuit.com.”

Defendants object to the use of

the Werner name in the web address because it may imply that
Werner endorses the site and the litigation.

Plaintiffs frame

this as an issue of “fair use,” but this misses the mark.

The

Court, as discussed below, must balance neutrality with adequate
notice.

The target audience for the website is apparently those

employees who receive the formal notice by some other means.

Unlike a page that attempts to receive the maximum relevant
exposure on internet search engines, a generic URL could
adequately direct the potential plaintiffs to counsel’s website,
as evidenced by the examples that plaintiffs provided to the
court in their “Exhibit C” (Filing No. 115-1, 12-20).

Plaintiffs

have not identified and the Court could not find an example of a
case that allowed the use of a defendant’s name in the website
address.
Further, the Court finds persuasive the precedent from
this district ordering that the notice should be “brief, neutral,
and factually correct.”

Martinez v. Cargill Meat Solutions, 265

F.R.D. 490, 502 (D. Neb. 2009).

Such a standard is consistent

with the Supreme Court’s analysis that class-plaintiffs should
get “accurate and timely notice concerning the pendency of the
collective action, so that they can make informed decisions about
whether to participate.”
U.S. 165, 170 (1989).

Hoffman-La Roche Inc. v. Sperling, 493

The Court agrees with the defendants that

use of the defendant-employer’s name in the URL is not neutral
because it may lead potential class-litigants to think that their
employer endorses their participation in the litigation.
Though a reference to a website is often permitted by
the courts, the plaintiffs have not shown why inclusion of a
website is particularly necessary to providing “accurate and
timely notice” in the present case, or why it is particularly

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necessary to use Werner’s name.

The notice itself provides

adequate information regarding the litigation.

Thus, in the

absence of a proposal for an alternative URL, the Court finds
that the reference to the website should be completely removed
from the notice.

If agreed to by the parties, plaintiffs may

include a reference to the website in the ordered notices with a
more generic web address, provided it does not delay carrying out
the order.
II. Notice Over the Qualcomm System
Plaintiffs request that additional notice be given
through a message over the Werner’s Qualcomm System.

Defendants

object on the grounds that such a notice would disrupt the
workplace and give plaintiffs “free reign to commandeer the
defendants’ resources.”

A number of courts have denied the use

of company resources like e-mail and company newsletters;
however, these cases, including cases cited by the defendants
usually do allow posting a notice in a prominent place on the
defendants’ job site.

See, e.g., Sherril v. Sutherland Global

Servs., Inc., 487 F.Supp.2d 344, 351 (W.D.N.Y. 2007) (denying email notice where notices were mailed and posted at the work
site); Rubery v. Buth-Na-Bodhaige, Inc., 569 F.Supp.2d 334, 338
(W.D.N.Y. 2010) (denying notice by e-mail and company newsletter
where notices were mailed and posted at the work site).

Courts

that have denied a posting at the work site often do so where

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“posting would reach the same potential plaintiffs.”

Barbosa v.

National Beef Packing Co., L.P., CV No. 12-2311-KHV, 2013 WL
393301, *4 (Jan. 31, 2013).

However, notice using company

communication systems has been allowed under certain
circumstances and even as a general practice given the prevalence
of e-mail in modern life.

See, e.g., Butler v. DirectSAT USA,

LLC, 876 F.Supp.2d 560, 575 (D. Md. 2012) (noting that e-mail was
particularly appropriate in that case because the nature of the
potential plaintiffs’ employment suggested they were comfortable
communicating by e-mail); Pippins v. KPMG LLP, 11 CIV. 0377 CM
JLC, 2012 WL 19379 (S.D.N.Y. Jan. 3, 2012) (“[G]iven the reality
of communications today, . . . the provision of email addresses
and email notice in addition to notice by first class mail is
entirely appropriate.”).
In the present case, the Court would be inclined to
grant a posting of the notice in the work place or a notice
through company e-mail if those means would be likely to reach
potential plaintiffs who, because of the nature of their
profession, may not be timely reached by first-class mail.
However, the dispersion and long periods away from home typical
of Werner drivers also make posting at a Werner facility a less
fruitful alternative, and it appears that Werner does not
regularly communicate to its drivers by e-mail as is the custom
in other businesses.

Rather, Werner uses its Qualcomm messaging

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system as a means of regular communication in the way that other
businesses might use a bulletin board at a facility or company email system.

A single notice across the Qualcomm system balances

the FLSA’s goal of ensuring adequate notice with the interests of
the defendants in minimizing disruption to the work environment.
A disclaimer will mitigate the possible inference that Werner
endorses involvement in the litigation.

Further, unlike the

website, Qualcomm messages are not accessible by the public at
large which alleviates some of Werner’s concerns about undue
attention from shareholders and customers.
The Qualcomm message, in addition to first-class mail,
makes the extensive reminder notice proposed by plaintiffs
unnecessary.

Finding no other objections to plaintiffs’ proposed

order, the Court will adopt the deadlines and language
communicated therein.
IT IS ORDERED:
1) That, if it has not already done so, within 10 days
of this Order, defendants are to produce to plaintiffs’ counsel,
in electronic format readable by Microsoft Excel, the names, and
last known of all drivers currently or formerly employed by
defendants who participated in the Student Driver Program from
June 21, 2009, to the present (the “Opt-in Data”) -- which phone
numbers are only to be used for the purpose of verifying the
mailing address of the driver associated with that phone number.

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2) That within 21 days of receiving the Opt-in Data,
plaintiffs’ counsel shall mail to each class member identified,
via US First Class Mail, the 3-page Legal Notice and Consent Form
proposed to the Court in Filing No. 115-1 but that before sending
the Notice and Consent Forms, any reference to
“http://www.wernerlawsuit.com” or
“[e-mail]” shall be removed.

Plaintiffs’

counsel shall communicate to defendants’ counsel, via electronic
mail, the date that the mailing is sent (the “Mailing Date”).
3) That on the 10th day following the Mailing Date,
within 30 minutes of 12:00 p.m. CDT, defendants shall send the
following message over its Qualcomm system to all of its truck
drivers:
TO ALL WERNER DRIVERS WHO
PARTICIPATED IN THE STUDENT DRIVER
PROGRAM AT ANY POINT FROM JUNE 21,
2009, TO THE PRESENT: A COLLECTIVE
ACTION LAWSUIT HAS BEEN FILED WHICH
CLAIMS THAT WERNER FAILED TO PAY
ALL WAGES AS REQUIRED BY LAW AND
SEEKS PAYMENT OF SUCH WAGES TO ALL
DRIVERS WHO JOIN THE LAWSUIT. BY
ORDER OF THE FEDERAL DISTRICT COURT
IN OMAHA, NEBRASKA, YOU HAVE THE
RIGHT TO JOIN THE LAWSUIT. A
FORMAL LEGAL NOTICE HAS BEEN MAILED
TO YOU. YOU CAN GET MORE
INFORMATION ABOUT THE LAWSUIT,
INCLUDING INFORMATION REGARDING HOW
TO JOIN, BY CALLING TOLL-FREE
[number to be provided]. THIS
MESSAGE IS BEING SENT BY COURT
ORDER. WERNER DOES NOT ENCOURAGE
OR DISCOURAGE YOU FROM JOINING THIS
LAWSUIT.
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4) That plaintiffs’ counsel may, without leave of Court
or further agreement from defendants, change the contact
information provided for plaintiffs’ Firm in the Notices,
provided that plaintiffs’ counsel must provide a copy of such
changes to defendants’ counsel prior to mailing such notices.
The purpose of this change must be solely to assist in organizing
the anticipated volume of Consent to Join Lawsuit Forms and
potential calls which may be received by plaintiffs’ counsel.
Plaintiffs may not use any web address or e-mail address that
uses Werner’s name.
6) That plaintiffs’ counsel may, with consent of the
defendants, include a reference to its website using a website
address that does not include the term “Werner,” provided it does
not interfere with meeting the deadlines in this order.
7) That all potential class members may join this
lawsuit by:

(1) mailing a copy of the “Consent to Join Lawsuit”

Form to Plaintiffs’ counsel, provided that it is placed in the
mail on or before the 90th day following the Mailing Date; (2)
e-mailing or faxing a copy of the “Consent to Join Lawsuit” Form
to plaintiffs’ counsel, provided it is sent via e-mail or fax on
or before the 90th day following the Mailing Date; or (3)
submitting an online “Consent to Join Lawsuit” Form, provided it
is submitted on or before the 90th day following the Mailing
Date.

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8) That plaintiffs’ counsel must file each opt-in’s
“Consent to Join Lawsuit” Form within 14 days of receiving same.
Plaintiffs’ counsel must file all “Consent to Join Lawsuit” Forms
by no later than the 110th day following the Mailing Date.
DATED this 1st day of April, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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